Scott Millard was thrown into jail by 58th District Court Judge Kenneth Post after invoking his client’s Fifth Amendment right against self-incrimination.

Millard appeared in the Ottawa County court in Hudsonville on Dec. 2 to represent a client charged as a minor in possession of alcohol second offense. While discussing bond conditions, District Judge Kenneth Post inquired whether a drug test would show Millard’s client “clean or dirty.”

Millard informed Post his client intended to stand mute to the question. Post was not pleased with this response.

After several exchanges and recesses between the attorney and the judge, Post ordered Millard to jail for contempt of court. Millard also was fined $100.

Judge Edward Post — the chief circuit judge and no relation to Kenneth Post — issued a reversal Monday in an 11-page opinion and reassigned the case to another judge.

“It is not improper to question a defendant regarding the use of illegal drugs to determine whether conditions of the defendant’s release are necessary because the privilege against self-incrimination is an option of refusal, not a prohibition of inquiry,” Kenneth Post’s opinion stated. “However, if a person asserts the privilege and declines to answer a question, the trial court must determine whether the assertion was reasonable. Once the trial court determines the privilege would apply, the person cannot be compelled to answer.”

Kenneth Post agreed the question could violate the Fifth Amendment.

“Clearly, the client’s answer to the question regarding the last day he used drugs would tend to incriminate him,” he wrote. “However, the trial court did not make any findings whether an answer would be incriminating. The trial court fundamentally erred when it insisted on the answer once the client asserted his right to remain silent.

“Applying the definition of contempt to the circumstances of this case, the court concludes that the trial court abused its discretion in convicting appellant of contempt of court,” the opinion stated. “Appellant’s resistance to the court’s order did not impair the court’s authority because the court did not have the authority to insist on an answer. Appellant’s repeated assertion of his client’s constitutional rights did not impair the dignity and respect owed the court; rather, it showed great respect for our Constitution and the judicial process.”

Millard works at Miel & Carr in Stanton, along with Joshua Blanchard, Duane Carr and Keeley Heath. The law firm immediately filed an appeal when Millard was jailed. The ACLU of Michigan, Criminal Defense Attorneys of Michigan and the Ottawa County Bar Association also filed briefs supporting the appeal.
Blanchard was pleased with the court’s reversal Monday.

“The fair administration of justice requires that defense attorneys be free to zealously represent their clients without the fear of being jailed for doing their job,” Blanchard said. “The opinion ensures that defense attorneys in Ottawa County can represent their clients without fear of retribution.”

A Facebook page titled “Recall Judge Ken Post of Ottawa County MI” has been created and currently has 186 “likes.”

Elisabeth Waldon is news editor of The Daily News, where she began as an intern in 2001. Her beat includes courts/cops/crime and Montcalm County government. She is also editor of The Carson City Gazette. She loves investigative reporting, telling small-town stories, taking road trips, frequenting music halls, experimenting with photography and being a wife and mother in the "Panhandle" of Montcalm County.

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